5.  The applicants were born in 1985 and 1987 respectively and live in Istanbul. They are brothers. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicants are set out in Section B below (paragraphs 6-17). The Government’s submissions concerning the facts are summarised in Section C (paragraphs 18-20). The documentary evidence submitted by the applicants and the Government is summarised in Section D (paragraphs 21‑74).
6.  On 23 November 2002 at about 2.30 a.m. the applicants’ neighbour, B.S., was shot in the street. The applicants, who were at their aunt’s house at the time, and a number of their friends, took the injured neighbour to hospital, where he died on arrival.
7.   A police chief and a number of police officers arrived at the hospital at 3 a.m. and asked the applicants and their friends to accompany them to Beyoğlu police station, where they could be questioned as witnesses in relation to the incident. By the time they arrived, however, the police officers had already established that the applicants’ neighbour had been shot by a police officer. They then decided to detain the applicants at the station. Although the applicants had been taken to the station at 3 a.m., the time of their arrival was stated as 5.30 a.m. in the relevant police report (see paragraph 24 below).
8.  The necessary formalities concerning their detention at the police station were not complied with. For example, their names were not entered in the custody ledgers, and although they were minors and should have been taken to a special police station for minors, this was not done. Furthermore, they were not informed of their rights or allowed to contact a lawyer, nor were their next of kin informed.
9.  On 24 November 2002 two police officers working at the special police station for minors went to Beyoğlu police station and questioned the applicants in the absence of a lawyer and thus in contravention of the applicable procedure, which stipulates that the presence of a lawyer is compulsory during the questioning of minors. Furthermore, although the applicants were questioned there, it was written in the statements taken from them that they had been questioned at the special police station for minors.
10.  While detained at the police station, the applicants were stripped naked, doused with cold water, kicked, punched and beaten with truncheons. The reason for the ill-treatment was to force them to implicate themselves in the incident. As they were illiterate and unrepresented by a lawyer, they had no way of verifying the statements before they were forced to sign them. As a result of those incriminatory statements the prosecutor instigated an investigation against the second applicant, but it was subsequently closed for lack of evidence (see paragraph 35 below).
11.  At around 4 or 5 p.m. on 25 November 2002 the police officers hit the applicants with their truncheons and told them to leave the police station.
12.  The following day the applicants went to the Istanbul branch of the Human Rights Association and were referred to the Human Rights Foundation, also in Istanbul, where they were examined by a number of doctors the same day. The reports pertaining to their medical examination were drawn up on 8 April 2003.
13.  With the assistance of their lawyer, Bülent Kurt, the applicants made an official complaint against the police officers on 29 November 2002. The prosecutor referred them to doctors, who examined them and described their injuries in medical reports. During the prosecutor’s investigation, police chief K.Ş.S., one of the police officers who had been responsible for the applicants’ ill-treatment, continued to serve as the chief of Beyoğlu police station and made numerous attempts to stall the investigation. It was not until he was posted elsewhere and another police chief was appointed to replace him that the necessary information could be handed over to the prosecutor to enable him to start the investigation (see paragraph 42 below).
14.  When the prosecutor subsequently started taking meaningful steps to investigate their allegations of ill-treatment, the police officers started putting pressure on the applicants and their family. The applicants were unable to withstand the pressure and were forced to dismiss Bülent Kurt. At the behest of the police officers, they appointed Ali Tufan as their new legal representative and informed the Beyoğlu Assize Court on 8 June 2004 that they were withdrawing their complaints. They were also forced to tell the authorities that their allegations of ill-treatment had been fabricated. Mr Tufan made submissions against them during the first hearing, held on 7 October 2004 (see paragraph 53 below).
15.  Although during that hearing the Assize Court decided to hold its next hearing on 28 December 2004, it held an unscheduled hearing on 15 December 2004 without informing the applicants or their legal representative. Police chief K.Ş.S. was thus heard by the Beyoğlu Assize Court in the absence of their lawyers and in breach of the applicable rules of criminal procedure (see paragraph 54 below). This deprived them and their lawyers of the opportunity to formally identify the police chief and put questions to him.
16.  Although they subsequently dismissed Mr Tufan, reappointed Mr Kurt and informed the Beyoğlu Assize Court of the change of representation on 28 December 2004, the Assize Court did not entertain the new power of attorney until 12 October 2005. It thus attempted to prevent their lawyer from representing them.
17.  As a result of the indifference of the national authorities to their allegations of ill-treatment and the collusion between the police authorities and the judiciary, the criminal proceedings against the police officers were not conducted diligently and were intentionally allowed to become time‑barred. The investigation into their allegations of ill-treatment showed that the judiciary did not have the courage to prosecute people responsible for ill-treating children as young as 15 and 17 years old.
18.  In their observations, the Government summarised the investigation documents (also summarised below in paragraphs 21 to 74), and submitted that the applicants had been taken to Beyoğlu police station with a view to being questioned as witnesses of a serious crime, namely the killing of B.S. The applicants, who were minors at the time, were taken to the station at 6.30 a.m. with a view to being referred to a special police station for minors. No custody reports were drawn up because the applicants had not been arrested, just taken in as witnesses. They were questioned at the special police station for minors.
19.  On 29 November 2002 the applicants lodged a formal complaint with the Beyoğlu prosecutor against the police officers. According to the medical reports drawn up at the request of the prosecutor, both applicants had a number of injuries.
20.  The information provided by the national authorities showed that the applicants were substance users and had regular problems with the police. During the trial, the applicants gave conflicting versions of events, and withdrew their complaints.
21.  The following information appears from the documents submitted by the parties.
22.  According to a report signed by three police officers, at 2.55 a.m. on 23 November 2002 a number of police officers arrived at Tarlabaşı Boulevard in the centre of Istanbul, where they saw an off-duty police officer, A.Ö., lying on the ground with various injuries to his head. Next to him was his pistol loaded with thirteen bullets and a spent bullet case. The officers also noted in their report that the applicants’ neighbour, B.S., had been shot some seventy-five metres from where A.Ö. was lying, and had since been taken to a hospital in Taksim.
23.  The report also stated that hand swabs had been taken from four individuals with a view to establishing whether or not they had gunpowder residue on their hands. The four individuals included the first applicant who, according to the report, “had been taken in by the police in connection with the incident”.
24.  According to another police report drawn up the same morning, six teenagers, including the two applicants, “who had been apprehended in connection with the incident” were “placed in the custody of the police” and taken to Beyoğlu police station at 5.30 a.m. with a view to being transferred to a special police station for minors.
25.  Some twenty four hours later, at 5.15 a.m. on 24 November 2002, K.Ş.S., the chief of Beyoğlu police station, wrote in a report that he had contacted a prosecutor by telephone, who had given him permission to question the applicants and the four other teenagers as “statement makers” (ifade sahibi) in relation to the death of B.S. and the injuries caused to A.Ö.
26.  The same day, between 9.30 and 11.30 a.m., statements were taken from the applicants and the remaining four teenagers by police officers S.Ö. and N.K., who worked at the special police station for minors. It is written in the statements that they were taken at the special police station for minors.
27.  In the statements, the applicants were reported to have told the two police officers that they had been walking along the street with a number of their friends when they had seen A.Ö. They had noticed that he was drunk, and had attempted to rob him. However, he had produced a pistol and they had unsuccessfully tried to take it from him. During the scuffle, the pistol had gone off and their friend B.S. had been shot.
28.  One of their friends had then pursued the armed man and started hitting him. When his pistol had fallen to the ground, their friend had taken it and shot him in the head. They had then taken B.S. to hospital and had been arrested there by the police.
29.  There are no documents in the Court’s possession showing the time and date of the applicants’ release from the police station.
30.  According to two medical reports, on 26 November 2002 the applicants were examined by doctors at the Human Rights Foundation. The first applicant told them that he had been beaten up at the police station, doused with cold water, hit on the back and the torso with a police truncheon, and grabbed by the throat by a police officer. The second applicant told them that a police officer had grabbed him by the throat, while another had held his hands behind his back, and the two officers had then pulled at his legs.
31.  The doctors observed that the first applicant had a number of injuries. These included a scratch on the upper right side of his torso measuring 4 centimetres, as well as bruising on the back of his body in four places, measuring 14 x 1.5, 14 x 1, 10 x 1 and 7 x 1 centimetres. The doctors concluded that his description of the ill-treatment was compatible with their findings.
32.  The second applicant did not appear to have any external injuries, but his description of the ill-treatment was deemed by the doctors to be compatible with his unsettled and nervous state of mind. They concluded that further medical examinations, including a bone scintigraphy and a psychological assessment, were necessary in order to reach a definitive conclusion.
33.  On 29 November 2002 the applicants, assisted by their lawyer Bülent Kurt, lodged a formal complaint with the Beyoğlu prosecutor against the police officers. They informed him that their statements had been taken in the absence of the necessary safeguards, and contained things they had never said. They alleged that during their time in police custody, they had been subjected to ill-treatment. At the end of their detention they had not been taken to see a doctor, but had been hit with truncheons and told to “leave and never be seen again”. The applicants referred to their rights guaranteed by the European Convention on Human Rights and the Convention on the Rights of the Child, and asked the prosecutor to investigate their allegations.
34.  The same day, the prosecutor referred the applicants to a doctor, who noted in his report that they had no visible signs of ill-treatment. He considered it necessary, however, that the applicants be examined more thoroughly at a hospital.
35.  An investigation which had been started by a prosecutor against the second applicant and his neighbour B.S. for the “attempted robbery” of A.Ö. was discontinued on 3 December 2002, because the prosecutor observed that the applicants’ neighbour had been killed by the police officer, and there was no evidence implicating the second applicant in the incident.
36.  On 11 December 2002 the Beyoğlu prosecutor questioned the applicants in relation to their allegations of ill-treatment, and opened a criminal investigation file. The first applicant told the prosecutor that he and his brother, the second applicant, had been beaten up by the chief of Beyoğlu police station, whose first name was “Kenan”. The ill-treatment to which they had been subjected included having been stripped naked and doused with cold water. During their time at the station, they had not been given any food or allowed to inform their family or a lawyer. They had been released “at 4 or 5” in the afternoon.
37.  The same day, the prosecutor referred the applicants to Haseki Research Hospital, where further medical examinations were carried out on them on 12 December 2002. According to the reports drawn up at that hospital, both applicants had a number of injuries.
38.  On 31 December 2002 the Beyoğlu branch of the Forensic Medical Institute drew up two reports, concluding that the first applicant’s injuries were of a nature to render him unfit for a period of three days. The second applicant’s injuries, which included a number of cuts and grazes on his lip, arms and the backs of his legs, rendered him unfit for a period of five days.
39.  On 15 January 2003 the Beyoğlu prosecutor questioned police officers S.Ö. and N.K., who worked at the special police station for minors and had questioned the applicants on 24 November 2002 (see paragraph 26 above). They told the prosecutor that on 24 November 2002 they had been asked to go to Beyoğlu police station to take statements from a number of children. When they had arrived, they had been presented with four statements allegedly taken from the children and had been asked to sign them as if they had prepared them. They had refused to do so and insisted on questioning the children themselves before returning to their own police station at around 1 p.m. the same day.
40.  In a letter of 24 February 2003 addressed to the Beyoğlu prosecutor, the chief of Beyoğlu police station, K.Ş.S., stated that no records existed at his station to show that the applicants had been detained there from 23 to 24 November 2002.
41.  Between 20 March 2003 and 14 October 2003 the Beyoğlu prosecutor sent four letters to K.Ş.S., unsuccessfully requesting him to ensure that twelve police officers working at Beyoğlu police station attended his office. On 13 January 2004 the Beyoğlu prosecutor wrote to him for a fifth time, repeating his previous requests. In the same letter he also warned that a criminal investigation would be opened against him if he failed to comply with the request.
42.  On 15 January 2004 the new chief of Beyoğlu police station replied to the prosecutor’s letter and gave him the names of the twelve police officers. He also informed him that he had been unable to contact eleven of them because they were working at different police stations around the country.
43.  On 11 March 2004 the Beyoğlu prosecutor filed an indictment with the Beyoğlu Criminal Court of First Instance charging a total of twenty police officers with ill-treatment, an offence defined in section 245 of the Criminal Code in force at the time of the events. Those indicted included the former Beyoğlu police chief K.Ş.S.
44.  The applicants joined as interveners in the criminal proceedings before the Istanbul Criminal Court of First Instance, which decided on 20 April 2004 that the police officers should have instead been charged with the offence of torture, an offence defined in section 243 of the Criminal Code which fell within the jurisdiction of the Assize Courts. The file was thus forwarded to the Beyoğlu Assize Court.
45.  On 18 May 2004 the first applicant was shown photographs of the twenty defendant police officers. He identified K.Ş.S. and three other police officers, R.E., H.Y. and M.A.
46.  In the meantime, a police chief was appointed to carry out a disciplinary investigation and questioned the applicants at Şişli police station on 8 June 2004. They were accompanied by their father, Mahmut Uğur, and Ali Tufan, a lawyer. In two almost identical statements drawn up by the investigating police officer the applicants were reported to have stated that on the day of the incident they had been taken to the special police station for minors and not Beyoğlu police station. Furthermore, they had never been beaten up there by officers. They added that a couple of days after they had left the police station, they had been sniffing glue and had been high when one of their friends had suggested they go to the Human Rights Association and make a complaint against the police. That way, their friend had told them, the police would never bother them ever again. That was how they had come to make the official complaint against the police officers. The injuries detailed in the medical reports had in fact been caused in a fight they had been involved in on the street that day. The lawyers and the Human Rights Association had then manipulated everything on their behalf.
47.  The same day, the applicants gave two petitions to the Beyoğlu Assize Court stating that they wanted to withdraw their complaints “which, in any event, had been made as a result of a misunderstanding”. Also that day, the applicants officially dismissed Bülent Kurt, the lawyer who had been representing them since the lodging of their official complaint against the police officers.
48.  On 14 June 2004 K.Ş.S. also made a statement at Şişli police station in the course of the same disciplinary investigation. He stated that when he had found out on the day of the incident that the applicants and their friends had been taken to his station, he had had them transferred to the special police station for minors. He had never beaten them up. In his opinion, the Human Rights Association had been interested in the incident because it concerned the killing of a civilian by a police officer, and it had then manipulated the incident with the assistance of a number of lawyers.
49.  On 25 June 2004, at the end of the disciplinary investigation, the investigating police officer recommended that no disciplinary punishment should be imposed on the defendant police officers. In line with that recommendation, the police disciplinary committee decided on 20 August 2004 not to impose any such punishment.
50.  On 30 June 2004 the applicants made a complaint to the Beyoğlu prosecutor, complaining that the police officers who had ill-treated them had also been responsible for, inter alia, their unlawful detention. They informed the prosecutor that they had been treated and questioned as suspects at the police station, and had had swabs taken from their hands. Nevertheless, no official records had been kept by the police officers in relation to their arrest, detention or release. This, in their opinion, meant that the police officers had committed an offence, the unlawful deprivation of their liberty. Moreover, although they had been detained for over twenty-four hours, no authorisation had been sought or obtained from the prosecutor for the period exceeding that time. They argued that although they had been under the age of 18 at the time, and should have been questioned directly by a prosecutor and in the presence of their lawyer, they had been questioned by police officers and in the absence of a lawyer.
51.  These complaints were rejected by the prosecutor on 6 January 2005, who considered that the applicants had been questioned as “statement makers”, and that in an investigation into an unlawful killing there was nothing unusual about questioning people who had been seen in the vicinity of the incident. The applicants filed an objection against the prosecutor’s decision, submitting that in the Turkish legal system there was no such concept as a “statement maker”. They referred to the applicable legislation setting out the procedure to be followed when persons are deprived of their liberty, and argued that none of those formalities had been observed in their case. The objection was rejected by the Istanbul Assize Court on 4 March 2005 and the decision served on the applicants on 1 April 2005.
52.  In the meantime, Bülent Kurt, who had initially represented the applicants but had been dismissed by them on 8 June 2004, sent a letter to the Istanbul Bar Association on 28 September 2004 stating that the applicants and the other children who had been arrested and ill-treated between 23 and 24 November 2002 were being threatened by the defendant police officers. For example, police chief K.Ş.S. had personally gone to court with the second applicant and a lawyer, and had made the second applicant sign certain documents there. He and other police officers had then threatened the applicants and their father, and had forced them to withdraw their complaints. Mr Kurt added that when he had suggested to the applicants and their father that they inform the prosecutor about the pressure being exerted on them by the police officers, they had declined to do so because they had been very scared. Mr Kurt further stated in his letter that K.Ş.S. had given the applicants’ father the business card of a lawyer and had asked him to appoint him to represent the applicants.
53.  The trial of the police officers began before the Beyoğlu Assize Court. During the first hearing on 7 October 2004, the newly appointed lawyer, Ali Tufan, told the court that the applicants were known to the police because of their past criminal activities. Their initial lawyer Bülent Kurt also attended the hearing, and informed the court of the pressure being exerted on the applicants by the defendant police officers. In the official court transcript, Mr Kurt was referred to as the lawyer on record for the applicants. The court decided to hold a second hearing on 28 December 2004.
54.  On 15 December 2004 the court held an unscheduled hearing and heard the defendant police chief K.Ş.S. The following entry features in the transcript of the hearing: “Although a second hearing in this case had been scheduled for 28 December 2004, the defendant K.Ş.S. and his lawyer came to court and told us that he was now working in the town of Halfeti and had come to Istanbul on other business. As it would be difficult for him to come back to Istanbul for the next scheduled hearing, he informed us that he would like to give his testimony now”. According to the transcript, apart from the three judges on the bench, a prosecutor, a court clerk and K.Ş.S., no one else was present. The defendant police chief told the court that the applicants and the other teenagers had been taken to his police station to be questioned as witnesses, but had subsequently been transferred to the special police station for minors. Neither he nor any of his colleagues had ill-treated them.
55.  The applicants submitted their written observations to the trial court, complaining that the hearing held on 15 December 2004 had been unlawful. They argued that the court’s failure to ensure their attendance had deprived them of the opportunity to confront the police chief.
56.  On 27 December 2004 the first applicant went to the Istanbul Bar Association and informed the lawyers there that pressure was being exerted on him and his brother by K.Ş.S. to dismiss their lawyers and withdraw their complaints. He further stated that the police chief had accompanied them to see a notary public, where they had signed a power of attorney giving their new lawyer authority. He informed the Bar Association of his wish to be represented by his previous lawyer Bülent Kurt.
57.  According to a report drawn up on 28 December 2004 by Mr Kurt and signed by one of his colleagues, when he and the applicants arrived at court for the second hearing, which had been scheduled for that day, Ali Tufan was waiting there with some of the defendant police officers. When he asked the applicants what they were doing at court, the applicants told him that they wanted to attend the hearing and continue to press charges against the police officers. Mr Tufan then unsuccessfully tried to dissuade the applicants and urged them not to attend the hearing. When they insisted on attending, all but one of the defendant police officers waiting for the hearing left the building and did not attend.
58.  During the hearing that took place later that day, the applicants repeated their allegations of ill-treatment. Mr Tufan, who claimed to be representing them, told the court that he had been unaware of any allegations of ill-treatment made by his clients against the police officers. The applicants then informed the court that their lawyer was Mr Kurt and not Mr Tufan.
59.  On 28 February 2005 the applicants officially reappointed their previous lawyers, including Mr Kurt, dismissed Mr Tufan, and informed the court of the change of representation. At a hearing on 12 October 2005 the court decided to accept the applicants as “participants” (katılan) in the proceedings. In all subsequent hearings they were referred to as such.
60.  On subsequent dates the lawyers representing the applicants continued to inform the Istanbul Bar Association and the court about the pressure being exerted on them and the applicants by the defendant police officers. They also submitted official documentation to the court showing that neither applicant had a criminal record, criticising the submissions made by Mr Tufan, who had told the court that “the applicants were known to the police because of their past criminal activities” (see paragraph 53 above).
61.  The two police officers who worked at the special police station and had questioned the applicants on 24 November 2002 (see paragraph 39 above) attended one of the hearings, and told the court that when they had arrived at Beyoğlu police station they had been presented with two statements prepared by the police officers working there, and had been asked to sign them as if they themselves had taken them. However, they had refused to do so and had questioned the applicants personally. They also told the court that when they had urged the police officers at Beyoğlu police station to release the applicants because they were being kept there unlawfully, they had been told to mind their own business.
62.  During the proceedings, the court was informed that the special police station for minors did not have in its possession the custody records pertaining to the relevant period. As a result, it was not known whether or not the applicants had been detained there in November 2002.
63.  A large number of defendants failed to attend the majority of the hearings held by the trial court. On each occasion the court urged them in writing to attend.
64.  The lawyers representing the applicants drew the court’s attention to a number of shortcomings in its handling of the case, and the defendant police officers’ failure to attend the hearings. They asked the court to ensure the officers’ participation by, if necessary, ordering their remand in custody. The other teenagers who were taken to Beyoğlu police station with the applicants (see paragraph 24 above) also gave evidence during the trial, describing how the defendant police officers had beaten them up and tried to force them to admit that they had killed B.S. who, as it later turned out, had in fact been killed by a police officer (see paragraph 35 above).
65.  In the course of a hearing held on 22 May 2007 the applicants’ father gave evidence. He told the court that his two children had not come home for three days. When they had finally come home, they had told him that they had been detained at Beyoğlu police station and beaten up there by officers. Mr Uğur explained to the court how his two sons’ mental state had deteriorated after the incident. In his testimony he also detailed the threats made to him and his family by the defendant police officers, and explained how, as a result of those threats, he and his sons had had to withdraw their complaints.
66.  On 21 July 2009 the applicants submitted their written submissions to the trial court, urging it to conduct its proceedings effectively and fairly. They warned the court that the proceedings had been continuing for such a long period of time that they could soon risk becoming time-barred.
67.  During one of the hearings a lawyer representing the defendant police officers complained about the press coverage given to the trial, and criticised suggestions published in various newspapers that his clients’ continued failure to attend the hearings would cause delays, which would cause the proceedings to become time-barred.
68.  In a hearing held that day, the prosecutor made his final submissions to the trial court. He argued that police chief K.Ş.S. had ill-treated the applicants and caused them minor injuries, which had necessitated minor medical treatment. The prosecutor requested the court to conclude that the offence the police chief had been charged with should be changed to ill‑treatment, as defined in section 245 of the Criminal Code. In his opinion, the police chief had not committed torture, an offence defined in section 243 of the Code, because he had not ill-treated the applicants in order to obtain information from them. In any event, they had not been detained as suspects at Beyoğlu police station. The prosecutor also recommended that the remaining police officers be acquitted.
69.  In the course of a hearing held on 19 November 2009 the lawyers representing the police officers were due to present their final defence arguments to the trial court. Nevertheless, they informed the court that they were unable to attend the hearing that day, and it was thus postponed until 29 December 2009. According to the transcript of the hearing, the court also decided to remind the lawyers representing the police officers that attending hearings in which they were scheduled to submit their final defence submissions was a legal requirement.
70.  During the twenty-first hearing, held on 29 December 2009, the court decided that there was insufficient evidence to prove that ten of the defendant police officers had subjected the applicants to “torture” within the meaning of section 243 of the Criminal Code, and acquitted them. It also considered that the actions of the remaining ten police officers, including police chief K.Ş.S., had amounted to “ill-treatment” within the meaning of section 245 of the Criminal Code and not “torture”, because there was no evidence to show that the applicants had been ill-treated in order to force them to confess to a crime or give evidence. Nevertheless, as the end of the prescription period for the offence had been reached, the court discontinued the criminal proceedings against the ten police officers.
71.  In support of its conclusion that the ten police officers had ill-treated the applicants, the court stated that they had been “unnecessarily kept at the police station for hours, and that their injuries had been caused when they had been pushed and jostled for no apparent reason”.
72.  The applicants appealed and drew the Court of Cassation’s attention to the statements taken from them by the police officers, in which they argued they had been forced to incriminate themselves for offences they had never committed (see paragraphs 26-28 above). They argued that in the light of those statements, the police officers should have been found guilty of torture and not ill-treatment, because the statements had been obtained from them under ill-treatment. By finding them guilty of ill-treatment, for which the prescription period was shorter, the police officers had been allowed to go with impunity.
73.  On 2 May 2011 the Court of Cassation held that the applicants had withdrawn their complaints against the police officers on 8 April [sic] 2004 (see paragraph 47 above), and that they did not, therefore, have the requisite standing to appeal against their acquittals. It upheld the trial court’s judgment of 29 December 2009.
74.  In the meantime, a disciplinary investigation was conducted by the Istanbul Bar Association into the complaints made by Bülent Kurt. In a decision of 16 October 2007 its Disciplinary Council decided to reprimand Ali Tufan for failing to inform Mr Kurt of his appointment to take over representation of the applicants.